South Dakota disputes NPR report on placement

State vigorously denies it places Indian children with white families for economic gain

More than a year after a controversial National Public Radio investigation into violations of the Indian Child Welfare Act in South Dakota, an ombudsman report judging its accuracy has yet to see the light of day.

Among other things, the October 2011 series — “Native Foster Care: Lost Children, Shattered Families” — said Native American children in South Dakota too often are placed with white families, contrary to the intent of the federal Indian Child Welfare Act. It also said the state has a financial incentive to take Native American children into state custody, that Gov. Dennis Daugaard’s work at Children’s Home Society while he was lieutenant governor was a conflict of interest, and that South Dakota’s foster care system in general has a cultural bias against Native Americans.

The series, by Laura Sullivan and Amy Walters, won a Peabody Award and prompted calls for reform in Congress and a stakeholder summit this spring in South Dakota.

And it has provided fodder for civil rights lawsuits, said Daniel Sheehan, general counsel for the Lakota People’s Law Project in Rapid City.

“A lot of this was triggered by the National Public Radio program,” Sheehan said.

From the beginning, though, state officials have called the NPR series misleading. While it’s common for targets of news investigations to complain about the resulting coverage, Daugaard’s office in particular has said the reporting was flawed with basic errors that undercut its central premise.

In an unusual move for South Dakota, Daugaard’s office released a preemptive rebuttal disputing the accuracy of the reporting, and another, more detailed statement after the stories aired.

Daugaard’s office also complained to NPR ombudsman Edward Schumacher-Matos, who indicated in December 2011 that he would prepare a report assessing the accuracy of the claims in the series. An ombudsman investigates complaints of error or bias.

The Argus Leader has contacted Schumacher-Matos multiple times for a timeline on when the report might be released.

“My report is close and will land when it lands,” he wrote in an email March 8.

Daugaard spokesman Tony Venhuizen said he hopes the long wait is worth it.

“I have to think that this time frame — well in excess of a year — is longer than useful,” he said.

Rick Edmonds, a media business analyst at the Poynter Institute who once worked with Schumacher-Matos at the Philadelphia Inquirer, described his former colleague as a careful, thoughtful journalist.

“He’s very thorough,” he said. “And when he does write, he writes at pretty great length.”

Among the points of dispute between NPR and the state:

BUDGET NUMBERS: How much does the state spend on foster care?

“A close review of South Dakota’s budget shows that they receive almost $100 million a year to subsidize its foster care program,” the NPR story said.

The Coalition of Sioux Tribes for Children and Families and the Lakota People’s Law Project cited this number in a report to Congress in January.

“We believe it is likely that the state consciously treats Native American foster children as an attractor of federal money,” the coalition’s report said.

But Daugaard’s office said the $100 million figure is not close to correct, and that real budget numbers show no incentive to keep children — Native American or otherwise — in custody.

“We don’t know where Ms. Sullivan got her figures,” Daugaard’s office wrote to Schumacher-Matos in February 2012, according to emails obtained by the Argus Leader.

It’s not clear what assumptions NPR made in calculating foster care receipts and expenses.

The actual administrative budget for all child protection programs, including foster care, was slightly more than $1.5 million in fiscal year 2011, Daugaard’s office said.

MEDICAID: South Dakota receives millions in Medicaid reimbursements annually, the NPR stories said, and typically Native American children are moved onto Medicaid once they’re in custody.

But Daugaard’s office said this ignores the fact that most foster kids already are on Medicaid when they’re taken into custody, and that the state pays 40 percent of medical bills that Indian Health Service doesn’t cover.

Sullivan declined to comment on the discrepancies until Schumacher-Matos issues his report.

“I haven’t seen the ombudsman’s final column, and it doesn’t make sense to comment until I’ve seen it,” she wrote in an email.

PLACEMENT: Native American children can be taken from their homes by a state court, if they live off the reservation, or a tribal court if they live on the reservation.

Some tribes contract with the Department of Social Services to place children removed by tribal police and courts. In 2011, law enforcement referred 17 percent of the agency’s abuse and neglect cases involving Native children, compared with 11 percent for white children, department spokeswoman Kristin Kellar said.

The NPR series didn’t differentiate between Native American children taken away by tribal court and those taken by a state court. But the Department of Social Services said that is an important distinction because the Indian Child Welfare Act applies only to custody cases determined in state courts.

For tribal court cases in which the Department of Social Services is contracted to place a child who has been removed from the home, the agency does not need to follow ICWA’s “placement preference” requiring that Native American children be placed with family or other tribal member except in rare circumstances.

Sheehan of the Lakota People’s Law Project disagrees, saying the entire purpose of the Indian Child Welfare Act was to prevent state agencies from having ultimate say over where Native American foster children are placed.

Tribes also have the right to intervene in state court cases involving Native American children and request the case be transferred to tribal court.

In 2011, according to the Department of Social Services, 654 Native American children in South Dakota were removed in a state court action; 250 of those cases later were transferred to tribal court. By comparison, 246 Native American children were removed by a tribal court.

INDIAN FOSTER HOMES: According to NPR, Native American children are being placed with white families although foster homes are available on the reservation. The stories cited two foster homes on the Crow Creek reservation and “20 empty homes” on the Pine Ridge reservation.

The state licenses 65 Native American foster homes, according to the Department of Social Services. The state does not recognize foster homes that are licensed by individual tribes but not the state unless those tribes have an agreement with the Department of Social Services.

The governor’s office also said NPR did not mention the 109 Native American children in kinship care, which requires home studies and background checks but not a state foster home license.

POVERTY: The extent to which the Department of Social Services takes into account extreme poverty on reservations when making custody decisions for Native American children is at issue. What social workers call neglect, the NPR story said, “is often poverty — and sometimes native tradition.”

But Kellar said neglect is defined specifically enough in state law as a threat to a child’s health and safety or a pattern of the child’s basic needs not being met.

“Poverty does not constitute neglect,” she wrote in an email. “Parents are accountable for providing minimally adequate necessities for their children and are not considered neglectful if they are accessing resources to help provide for the basic care of their children or if they can’t access resources because they are not available.”

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